Murkowski Questions Legality of Guantanamo Release

Senator Seeks Independent Inquiry into Bergdahl Deal, Pentagon’s Role

Senator Lisa Murkowski and a number of her U.S. Senate colleagues are asking the Government Accountability Office (GAO) to look into the negotiations of the Department of Defense that resulted in the release of five high-ranking Taliban officials.

Under the rule of law, in the 2014 National Defense Authorization Act, the Secretary of Defense is required to consult with, or at a minimum notify, Congress at least 30 days in advance of any transfer or release of Guantanamo inmates.  The 2014 NDAA blocks the funding of any such release efforts that don’t comply with the law.

In a letter to the head of the GAO (attached), Senator Murkowski and her colleagues seek an independent and objective analysis of how this agreement was reached, to look into whether federal laws were broken through the release of the five Taliban members to the Government of Qatar.

The letter reads:

We are writing to request your legal opinion regarding whether the Department of Defense (DOD) incurred obligations in violation of section 8111 of the Consolidated Appropriations Act, 2014 with regard to the transfer of five individuals from Guantanamo Bay, Cuba, to the nation of Qatar.

As was recently made public, five individuals being held at Guantanamo Bay, Cuba, were transferred to Qatar.  Section 1035 of the National Defense Authorization Act for Fiscal Year 2014 permits the Secretary of Defense to transfer or release individuals detained at Guantanamo, provided he makes certain determinations.  Section 1035(d) requires the Secretary of Defense to notify the appropriate committees of Congress not later than 30 days before the transfer or release of such individuals.  Moreover, section 8111 of the Consolidated Appropriations Act, 2014 provides:

“[N]one of the funds appropriated or otherwise made available in this Act may be used to transfer any individual detained at United States Naval Station Guantánamo Bay, Cuba to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.” 

Pub. L. No. 113-76, div. C, title VIII, § 8111, 128 Stat. 5, 131 (Jan. 17, 2014).

Given that the Secretary of Defense failed to provide the statutorily-required 30?day notice under section 1035, we request your legal opinion regarding whether such a failure constitutes a violation of section 8111’s prohibition on the use of appropriated funds for transfers not made in accordance with section 1035.  If, indeed, DOD’s obligation of appropriated funds runs afoul of section 8111, we also seek your legal opinion as to whether DOD has violated the Antideficiency Act.

Joining Senator Murkowski in signing this letter are Senators Lamar Alexander (R-TN), Roy Blunt (R-MO), Dan Coats (R-IN), Thad Cochran (R-MS), Susan Collins (R-ME),  Lindsey Graham (R-SC), Mitch McConnell R-(KY) and Richard Shelby (R-AL).